ZadekpediaAmy Coney Barrett was nominated by President Trump to fill the Supreme Court seat vacated by the death of Justice Ruth Bader Ginsburg, a nomination discussed across two episodes of The Bob Zadek Show in September and October 2020. The episodes present her as a jurist whose confirmation battle raised questions about judicial philosophy, the proper scope of federal power, and the future of the Supreme Court.
The 2020 nomination and its stakes
Bob Zadek opened the September 24, 2020 episode by describing “scary times” following Ginsburg’s passing and Trump’s selection of Barrett to fill the seat. He noted the “accident of it being right at election time” and raised the possibility of one party controlling all three branches of government after the election, warning of “mischief” including the packing of the Supreme Court. Zadek told listeners that the country could soon be living in a political climate it had never experienced in its 231-year history, with “ground zero” being the Supreme Court, which he called the unelected branch of government. Eight-Dimensional Chess (2020)
In the October 9, 2020 episode, Zadek again framed the moment as a turning point, asking “how did we get here” and noting that Americans were now required to understand the Supreme Court—a branch with no budget and no power to enforce its rulings, comprised of nine unelected, serving-for-life public servants. He described Barrett’s elevation as “probable” and asked what it would mean for the country. Amy Coney Barrett on Trial (2020)
Originalism and the presumption of liberty
In the October 9 episode, guest Randy Barnett, a constitutional law professor at Georgetown Law, discussed the philosophy of originalism versus living constitutionalism in the context of Barrett’s confirmation. Barnett described three approaches courts have taken when deciding whether legislation is within the power of a legislature to enact. The first is a “presumption of liberty,” where the benefit of the doubt goes to the individual whose liberty is being restricted, and the legislature can rebut that presumption. The second is a “presumption of constitutionality,” where the citizen must rebut the presumption. The third, which Barnett said courts have taken in many cases and which Barrett defends under certain circumstances, is that laws are presumed constitutional and citizens are not allowed to contest that presumption—as long as any conceivable rational basis for the law can be identified, it is constitutional. Barnett stated that this third approach is where he and Barrett disagree. Amy Coney Barrett on Trial (2020)
Zadek drew a parallel between the presumption of liberty and the presumption of innocence in criminal law, arguing that since every law deprives someone of liberty, the burden should be on the state to justify it. Barnett agreed with the analogy’s logic but resisted extending it to the court’s role as a legislature. Amy Coney Barrett on Trial (2020)
Barrett and judicial deference
Barnett stated that he strongly supported Barrett’s confirmation notwithstanding their disagreement, citing her character, intelligence, background as an experienced law professor, and her commitment to originalism. He expressed confidence that she would remain an originalist on the court and would not be “seduced by the power that Washington and the establishment can offer Supreme Court justices.” He noted that where the Constitution is clear, she would likely enforce it as written more than most other appointees, though this would depend on her view of stare decisis. Amy Coney Barrett on Trial (2020)
The disagreement concerned deference to Congress. Barnett said that when Congress exercises one of its powers in a way that is “unnecessary or improper,” Barrett would be more deferential to Congress’s opinion on whether its action is within its powers. Barnett characterized her position as saying that Congress gets to make policy judgments and courts are not competent to make them—a statement he agreed with as stated. But he argued it is not a policy judgment for a court to ask Congress to explain why its action is necessary and proper and to exercise independent judgment over that claim. Amy Coney Barrett on Trial (2020)
Barnett described the result of this deference as a system of “double deference”: a citizen tells the Supreme Court that Congress has exceeded its power, the Court defers to Congress, and then the citizen asks Congress whether the action is within its power, and Congress defers to the Supreme Court. When each side defers to the other, Barnett said, “what drops out of the equation is the Constitution”—specifically constitutional limits on legislative power at both the federal and state levels. Amy Coney Barrett on Trial (2020)
Across episodes
The September 24 episode, with Josh Blackman, framed Barrett’s nomination in terms of court packing, election timing, and the historical importance of the Supreme Court; the October 9 episode, with Randy Barnett, shifted to the philosophical substance of originalism and the specific disagreement over judicial deference. The episodes show a change in treatment from political stakes to jurisprudential detail, with Blackman and Barnett advancing different aspects of the topic.